Saturday, December 27, 2008

The VA Waiver

Y FARM, INC.

RELEASE, WAIVER & INDEMNITY AGREEMENT

The undersigned (hereinafter referred to as “Participant”), being of legal age or signing in conjunction with a parent or legal guardian if not of legal age, desires to board, handle and ride their horse(s) at Y Farm, Inc. Participant, being fully aware of the risk of injury and hazards inherent in the riding and handling of horses, hereby elects voluntarily to participate in said activities, and does hereby willingly enter into the Release, Waiver & Indemnity Agreement.

THEREFORE, IN CONSIDERATION OF BEING PERMITTED TO RIDE AND/OR HANDLE HORSES, OR PARTICIPATE AS A SPECTATOR OF HORSES AT Y FARM, INC., PARTICIPANT KNOWINGLY AND EXPRESSLY WAIVES PARTICIPANT'S RIGHTS TO SUE Y FARM INC, Y person, OWNERS & OFFICERS OF Y FARM, INC., THEIR EMPLOYEES, AGENTS, SUCCESSORS, HEIRS AND ASSIGNS, FOR ANY INJURY, DEATH, LOSS, OR DAMAGE CAUSED TO PARTICIPANT OR TO PARTCIPANT'S PROPERTY, AND PARTICIPANT AGREES TO ASSUME ALL RISKS INHERENT IN RIDING OR OTHERWISE COMING IN CONTACT WITH HORSES, INCLUDING, WITHOUT LIMITATION, THE RISKS OF INJURY, DEATH, LOSS, OR DAMAGE TO RIDER OR TO RIDER'S PROPERTY. THE VIRGINIA EQUINE LIABILITY LAW, VA CODE AN § 3.1-796.132A STATES THAT EXCEPT AS PROVIDED IN § 3.1-796.133, AN EQUINE ACTIVITY SPONSOR, AN EQUINE PROFESSIONAL, OR ANY OTHER PERSON, WHICH SHALL INCLUDE A CORPORATION, PARTNERSHIP, OR LIMITED LIABILITY COMPANY SHALL NOT BE LIABLE FOR AN INJURY TO OR DEATH OF A PARTICIPANT RESULTING FROM THE INTRINSIC DANGERS OF EQUINE ACTIVITIES AND, EXCEPT AS PROVIDED IN § 3.1-796.133, NO PARTIPANT NOR ANY PARTICIPANT'S PARENT, GUARDIAN, OR REPRESENTATIVE SHALL HAVE OR MAKE ANY CLAIM AGAINST OR RECOVER FROM ANY EQUINE ACTIVITY SPONSOR, EQUINE PROFESSIONAL, OR ANY OTHER PERSON FOR INJURY, LOSS, DAMAGE, OR DEATH OF THE PARTICIPANT RESULTING FROM ANY OF THE INTRINSIC DANGERS OF EQUINE ACTIVITIES. EXCEPT AS PROVIDED IN § 3.1-796.133, NO PARTICIPANT OR PARENT OR GUARDIAN OF A PARTICIPANT WHO HAS KNOWINGLY EXECUTED A WAIVER OF HIS RIGHTS TO SUE OR AGREES TO ASSUME ALL RISKS SPECIFICALLY ENUMERATED UNDER THIS SUBSECTION MAY MAINTAIN AN ACTION AGAINST OR RECOVER FROM AN EQUINE ACTIVITY SPONSOR OR AN EQUINE PROFESSIONAL FOR AN INJURY TO OR THE DEATH OF A PARTICIPANT ENGAGED IN AN EQUINE ACTIVITY. THE WAIVER SHALL GIVE NOTICE TO THE PARTICIPANT OF THE INTRINSIC DANGERS OF EQUINE ACTIVITIES AND THE WAIVER SHALL REMAIN VALID UNLESS EXPRESSLY REVOKED IN WRITING BY THE PARTICIPANT OR PARENT OR GUARDIAN OF A MINOR. PARTICIPANT ACKNOWLEDGES THAT PARTICIPANT HAS BEEN GIVEN NOTICE OF THE INTRINSIC DANGERS OF EQUINE ACTIVITIES, INCLUDING (i) THE PROPENSITY OF AN EQUINE TO BEHAVE IN WAYS WHICH MAY RESULT IN INJURY, HARM, OR DEATH TO PEOPLE ON OR AROUND THEM; (ii) THE UNPREDICTABILITY OF AN EQUINE'S REACTION TO SUCH THINGS AS SOUNDS, SUDDEN MOVEMENT, AND UNFAMILIAR OBJECTS, PERSONS, OR OTHER ANIMALS; AND (iii) CERTAIN HAZARDS OF SURFACE AND SUBSURFACE CONDITIONS; (iv) COLLISIONSWITH OTHER ANIMALS OR OBJECTS; AND (v) THE POTENTIAL OF A PARTICIPANT ACTING IN A NEGLIGENT MANNER THAT MAY CONTRIBUTE TO INJURY TO THE PARTICIPANT OR OTHERS, SUCH AS FAILING TO MAINTAIN CONTROL OVER THE EQUINE OR NOT ACTING WITHIN THE PARTICIPANT'S ABILITY. PARTICIPANT, PARTICIPANT'S PARENT, GUARDIAN, AND/OR REPRESENTATIVE EXPRESSLY AGREES TO ASSUME ALL SUCH RISKS AND WAIVES ALL RIGHTS TO SUE FOR INJURIES CAUSED BY SUCH RISKS. THIS WAIVER AND EXPRESS ASSUMPTION OF RISKS SHALL SPECIFICALLY APPLY TO PARTICIPANT AND TO ANY AND ALL MINOR CHILDREN AND/OR WARDS OF PARTICIPANT, AND SHALL BE CONSTRUED TO COMPLY WITH ALL EXCULPATORY TERMS OF THE VIRGINIA EQUINE ACTIVITY LIABILITY LAW, VA. CODE ANN. §§ 3.1-796.130 et seq. PARTICIPANT, PARTICIPANT'S PARENT, GUARDIAN, AND/OR REPRESENTATIVE FURTHER INDEMNIFY RIDGE FARM, INC., ITS OWNERS AND OFFICERS, THEIR EMPLOYEES, AGENTS, SUCCESSORS, HEIRS, AND ASSIGNS FROM ANY AND ALL COSTS OF DEFENDING SUCH CLAIMS, INCLUDING ATTORNEY'S FEES.

Inherent Risks and Assumption of Risk: The undersigned acknowledges there are inherent risks associated with equine activities such as described below, and hereby expressly assumes all risks associated with participating in such activities. The inherent risks include, but are not limited to the propensity of equines to behave in ways such as, running, bucking, biting, kicking, shying, stumbling, rearing, falling or stepping on, that may result in an injury, harm or death to persons on or around them; the unpredictability of equine's reaction to such things as sounds, sudden movement and unfamiliar objects, persons or other animals; certain hazards such as surface and subsurface conditions; collisions with other animals; the limited availability of emergency medical care; and the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within such participant's ability. Undersigned acknowledges that horses, by their very nature are unpredictable and subject to animal whim, which may include behavior including but not limited to their propensity to kick, bite, shy, buck, stumble, bolt, rear or general unpredictability. Undersigned assumes all risks in connection therewith, and expressly waives any claims for any injury or loss arising there from. Undersigned agrees to abide by and follow Farm's rules and regulations, which shall be posted. Undersigned assumes all risks therefore. It is expressly agreed by Riders, horse owners and their guests and any parent or guardian whose signature appears on this document that this Release, Waiver and Indemnity Agreement shall be governed and construed as being sufficient to satisfy the assumption of risk and waiver requirements necessary to relieve equine activity sponsors and equine Professionals from liability under the Virginia Equine Activity Liability Act, and that Y Farm, Inc. and its officers and owners are covered by the provisions of that Act. This Release, Waiver and Indemnity Agreement shall be governed and construed by the laws of the Commonwealth of Virginia, regardless of where any injury or loss shall occur. In the event that any portion of this Release, Waiver and Indemnity Agreement shall be declared unenforceable, such declaration shall not affect the remaining terms of this document, which shall survive intact.

CAUTION: READ BEFORE SIGNING

Signature ____________________________________________ Date:_____________ signature* ___________________________________________ Date:_____________ (Rider's Parent or Guardian*)Printed name: __________________________________ Printed name*:______________________________ *Parent or guardian must sign in addition to rider under eighteen years of age

Ok, my comments. As a legal professional I can see the usefulness of this waiver, but who will be reading it and signing it? Who will be deciding if its clear and informative? I got bored after the first paragraph. I know that’s sad, but is a jury going to think the plaintiff read or understood any of this? This is written by a lawyer for a lawyer, but who has to understand it in the middle? The person waiving their rights! They wont understand this and it’s a risk that a jury wont believe they did either.

Next the font is not great. The parts that should be bold and large are small and the parts that should be small are all so large that they become a blur of unintelligible words. This waiver was well thought out and carefully executed, but some of the basic rules are backwards. I actually cannot tell if the waiver releases Farm from all suits by plaintiff’s entourage of hears, assigns ect because I simply cannot force myself to wade through the all cap font. Now, I like that the VA statute, knowing its in VA, points out the possible ways in which a person might contribute to their own injuries. I’d play that up. I’d add more. That’s you key to winning a VA suit—strict contributory negligence so harsh that watching re-runs of Black Beauty might cross that line.Please be aware that plain English is not a bad thing. After each clause, which you should understand if you are going to risk your future on a contract, its Ok to just say “Hey, I love my horses and I want you to love them too, but if you ride here you have to promise not to sue me. If you don’t want to do that then I am sorry, you are not welcome here.

In this world were anything over 200 words is considered boring you have to make sure eyes have not blurred and brains have not shut down after the second paragraph. I push past that with every post. I would do much better to post fewer words and more pictures, but this is a legal blog and if you cant handle words I cant help you. But when I draft a waiver or a contract I think about what a jury will be willing to read and how they will respond. Waivers have to be long, but they must be clear and understandable. The least clear and understandable thing on earth is a statue. Lawyers can argue for years about the damn things because its almost impossible to know what they say or mean. 10 judges will read the same statute and get to differing results. Adding the statutory language is always a good thing, but relying on it alone is legal suicide. It actually takes a Supreme Court to figure out what a statute means. Its my job to make it even more murky in court so my side wins.

Be VERY clear that the waiver must be “knowingly” signed. If they can’t understand it without a week to dissect it and seek independent legal counsel to sign it then you need some good old fashioned plain English. It may make the waiver longer, but it also helps the reader get to the end without losing interest.A waiver with so many words (which again, I do not think is a bad thing) cannot be signed in a few minutes while getting ready to ride. It might be best to post your waivers on your website so people can read them and think about them for awhile before they show up at your farm saddle over arm and ready to ride.

This is a good waiver, but the font has to be corrected and it might be a good thing to test drive it out an a non horsey friend and ask then what it said and meant. Lawyers, judges and a JURY have to all agree it was clear and unambiguous and understandable.

Lastly, since VA does not recognize waiving negligence I might play up the assumption of the risk areas and rely less on the statue for protections. Once again, the statutes do nothing to prevent lawsuits for negligence so in reality they do nothing more then the common law has done for years but get your case kicked sooner if you were not negligent.

About Me

I am a newbie attorney setting out on an adventure in Animal Law. I am not the comedian. That's another Sara Silverman. I am much older than you imagine and actually went to a good law school. It's not their fault I can't spell. Nothing in this Blog is intended to be legal advice or should be taken as legal advice. If you have a legal problem, consult a licensed attorney. Nothing in this blog is meant to be an advertisement and should not be viewed as such. I am not here to solicit your business. If that worked I would not have time to blog. I can be reached at HonorLaw@gmail.com. Comments and corrections are welcome, praise is even better:>
That's not me. Its my dog. He is my paralegal.